Friday, August 06, 2010

I'm sure everyone's heard by now that California Proposition 8 has been struck down in federal court. Same-sex couples are on their way to being able to marry in California. The drama will play on for a while, unfortunately. The ruling has been stayed to give opponents time to appeal, something of a courtesy from the judge in the case. An appeal could drag it out for at least another year while it goes to the 9th Circuit court, and possibly up the Supreme Court. Wednesday's ruling was the fatal shot to the California same-sex marriage ban, however. The defendants in the case had little going for them and they bungled the hearing. The ruling is thorough and Constitutionally sound. I think it has little chance of being overturned. At this point, the religious right might be wise to let this one go. If they appeal to the Supreme Court, it could make quick work of same-sex marriage bans in the remaining 44 states. It's just a matter of time before that happens. America will eventually join the first world on this issue.

I spoke yesterday at a Prop 8 rally here in Austin hosted by the Equality Across America Texas Regional Network. I told them that the conservative Christians behind Prop 8 were organized, powerful, and take a long-term view. They're not going away anytime soon. Spoke about the importance of church-state separation and the need to no believe propaganda and think for one's self. For many in the audience, it was the first time they'd heard an atheist speak, but my message resonated with many. I know the Gay/Lesbian/Bi/Trans-gender/Queer/Whatever Else movement is anxious to win full equality. Those religious conservatives are not anxious to give up their power, however. I told the audience that the thing their enemy feared the most was the normalcy of gays. Without an enemy, they lose power and money. So many of those religious leaders wouldn't know how to work an honest day's if they had to.

Austin's Proposition 8 Rally, City Hall, August 4, 2010

Part of me hopes that with this really lame attempt to defend Prop 8, we're seeing the demagogues implode. I've often mused at how much the religious conservatives hate the judicial branch of the government. They can manipulate the elected branches easily. They have money and clout. They can move the masses with their lies, propaganda, and emotional manipulation. But the courts are largely beyond their grasp. The courts trade in reason and evidence, which are in short supply among apologists and other faith-based con artists. They have a tough time winning battles there.

Still, I'm surprised at just how lame the defense was. Check out this bit of pathos:

In the California campaign, gay marriage foes could set up a site called "ProtectMarriage.org." But when Walker asked their lawyer what harm marriage would require protection from, ProtectMarriage’s lawyer said, "I don’t know. I don’t know." When even their own "experts" couldn't show any evidence of harm to marriage, their lawyer was reduced to arguing that the people could act without evidence, just on their inchoate fears alone. Inchoate fears are the stuff of political campaigns -- not constitutional litigation.

I can't imagine the any soldier from the army of religious-nut lawyers graduating from Liberty University School of Law doing as poorly as these defendants. They would have made something up, even if it was obvious bullshit. It's hard to imagine how to read this. Maybe the lawyers were just too honest. How's that for ironic?

40 comments:

I'm as excited as I am concerned that this whole thing may rest on the ancient shoulders of coin-flip Justice par excellence Anthony Kennedy. :P and even if he gets on board, Elena Kagan, who just got confirmed as of this moment, seems way more conservative than Justice Sotomayor.

At least she was more of a centrist slightly leaning to the left and had that whole "compassion" dealie going on that made republicans froth at the mouth. Then again, Kagan might have just been playing the Judiciary committee just as every other nominee has(plus, there are rumours that she may very well be the first LGBT woman on the Court.)

We'll see how this turns out, 'cause it's only the beginning. In the meantime, congratulations to everyone on the side of reason and love and keep up the good work.

Coincidentally, it's also a nice day for supporters of equality internationally. The Supreme Court of Justice of the Nation(here in Mexico), just ruled 8-2 that the law passed by the Legislative Assembly of the Federal District legalising same-sex marriage in the capital is indeed constitutional and that nothing in the constitution establishes that marriage should be between a man and a woman.

After the law passed in the liberal-controlled(Democratic Revolution Party) local legislature, the administration of President Felipe Calderón(of the arch-conservative Catholic, National Action Party) tried to invalidate it on constitutional grounds.

Sadly, it's not like your Supreme Court, so this doesn't mean that now there's a precedent and it's legal everywhere. I'm guessing it has something to do with you guys having a Common Law system and us having a Civil Law system, but I'm way over my head so I'll stop talking. :D

1) Does this place the Federal courts on a collision course with DOMA? Eugene Volokh writes in his 'blog:

"The rationale for Judge Walker’s decision striking down Prop. 8 would equally apply to the federal Defense of Marriage Act.

After all, if it’s irrational and unconstitutional for a state to refuse to recognize same-sex marriages within its own boundaries, it’s irrational and unconstitutional for a state to refuse to recognize out-of-state same-sex marriages (a refusal that DOMA allows), and for the federal government to refuse to recognize same-sex marriages in contexts such as tax law and immigration law (a refusal that DOMA mandates).

Will the Justice Department face political pressure to file an amicus brief defending this federal statute, by opposing Judge Walker’s decision?"

2) If that happens, whither DOMA?

3) If DOMA comes under direct fire, at what point will Obama finally come out (heh) in unqualified support of SSM?

This from David Axelrod, following the decision announcement:

"The president does oppose same-sex marriage, but he supports equality for gay and lesbian couples, and benefits and other issues, and that has been effectuated in federal agencies under his control."

Pres Obama really needs to cut the bullshit. Those who hate and oppose him will not give him one molecule of credit because of his stance on this and his supporters feel (rightly) betrayed.

4) What I WANT to happen is for the various State laws to start falling - this, combined with the growing support for SSM across almost all voter categories will assure victory.

5) What I FEAR will happen is a big, final fight to pass an actual, no-kidding 28th Amendment banning SSM - or at least explicitly assigning the power of defining marriage to individual States.

"The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed."-----------Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.-----------Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).-----------The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present. As the case of Perry and the other plaintiffs illustrates, sex and sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation. Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.

Proponents argue that Proposition 8 does not target gays and lesbians because its language does not refer to them. In so arguing, proponents seek to mask their own initiative.-----------Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.-----------Tradition alone, however, cannot form a rational basis for a law. Williams v Illinois, 399 US 235, 239 (1970). The “ancient lineage” of a classification does not make it rational. Rather, the state must have an interest apart from the fact of the tradition itself. The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

It really was about time this stupid bill got overturned. It is nice to see that organisations like the NOM and the "Yes on 8" guys and the Mormons who financed it have been exposed for the morons that they were and are. Damn straight it was unconstitutional, and it's a great shooting of the birds towards all those who preached about "traditions of marriage" while ignoring all the other stuff in their Bibles that was also traditional... like no divorce, arranged marriages, no interracial marriage, and virtually no rights for women whatsoever.

The best part about this of course is that the Judge essentially told the supporters that if they wanted Prop 8 to stand then they needed to actually present just one single shred of legal evidence that they were right: that their view that "permitting same sex marriage would impair or adversely affect the state's interest" stood up in any way to reason. And they couldn't do it, since the entire crux of their arguments had to do with "I personally think two dudes having sex is totally gross" or "I want my vicious, violent, authoritarian interpretation of God to be the law of the land."

And of course, there's the fact that the legal and logical arguments of those fighting against Prop 8 are so utterly sound that it will be damn near impossible for the Supreme Court to overturn this decision. Heck, the decision is rife with constant criticisms of the defence for its failed attempts to prove that Prop 8 was constitutional in any way. Hopefully once it becomes law any churches that try to resist this law will be stripped of their tax free status, since if they're going to take up such high political biases, they definitely shouldn't have any right to evading taxes. Come to think it, there's no reason that churches of any kind should be evading taxes anyway, especially not in these economic times when taxing the incomes of churches would do wonders for the economy.

"The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed."-----------Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.-----------Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny. That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).-----------The evidence at trial shows that gays and lesbians experience discrimination based on unfounded stereotypes and prejudices specific to sexual orientation. Gays and lesbians have historically been targeted for discrimination because of their sexual orientation; that discrimination continues to the present. As the case of Perry and the other plaintiffs illustrates, sex and sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation. Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.

Proponents argue that Proposition 8 does not target gays and lesbians because its language does not refer to them. In so arguing, proponents seek to mask their own initiative.-----------Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.-----------Tradition alone, however, cannot form a rational basis for a law. Williams v Illinois, 399 US 235, 239 (1970). The “ancient lineage” of a classification does not make it rational. Rather, the state must have an interest apart from the fact of the tradition itself. The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

I hope it goes to the super duper supreme court. Maybe we can get this settled once and for all. Wishful thinking, I know.

I love how the social conservatives tout this as "The left has forced their morality on the rest of us." It's almost schizophrenic. How do they figure that?

How does telling Group A, "You are free to live your lives and continue your persuit of happiness.", while Group B isn't effected by this decision in any way, shape or form, somehow translates into "Group A is forcing its views on Group B"?

No one is forcing you to do anything. It has nothing to do with you. That's the whole point!

This ruling is, IMO, one of the (if not _the_ the) Rosa Parks events for the gay/lesbian movement in the US.

To my knowledge, this is the first time the individual civil liberties of gays&lesbians has ever been explicitly brought under the umbrella of the US constitution - namely the due process of law clause of the 14th amendment.

Prior to this time I don't think anything has ever been directly said about the civil liberties of gay people _as gay people_. Now, _finally_, the notion of a compelling state interest has been said by an actual federal judge to govern the restriction of civil liberties like the right to marry for gay/lesbian Americans.

This is HUGE - this means mere bigotry and hatred are no longer sufficient reasons to deny homosexuals their civil rights _as a matter of legal principle_.

Before this any Tom/Dick/Harry homophobe could come along and get his homophobia enshrined in the law simply by expressing it as "moral degeneracy" or some such crap and greasing a few palms here and there.

Now these guys have to actually _show a good reason_ before gays and lesbians can be denied their civil liberties....

To me, this is just a gigantic event for everyone in this country....

I read the summary of the ruling (at the end) at work yesterday and it's really ground-breaking stuff, IMO.....

Rev. Kopeland proclaimed on his show that the reason Jesus's healing miracles can't be performed today is because of hospitals. Hospitals that rely on the researched medicine of mortals are such an insult to god that he has withdrawn his magical spells. So when the fundies give up on homosexuals watch out nurses!

I weathered the AIDS crisis as a late teen early twenty year old in North Louisiana. We (activists and very scared people) felt so incredibly alone and segregated from the other part (read as 'straight') of the U.S.

That said, I am shocked and grateful almost to the point of tears at the support of so much of the population on this issue. Never in my life did I think I would see the dividing line on a predominately gay issue not be between gays and straights, but between rational and irrational. The country has come so incredibly far.

I am so thankful to everyone who recognized this as a human rights issue and works toward keeping church and state separate for the betterment of not only individual lives but also for the betterment of our nation. Saying "thank you" doesn't feel quite right because I know everyone is acting on their core beliefs of freedom and individuality (which is how it should be)and not really just for the benefit of one group . So I would just like to say that once again, atheists have proven themselves far more moral than Christian dogma and I am more than proud to be included in your numbers.

I don't think they "bungled the hearing", actually. This WAS their "A game". It's all they ever had. They are good at manipulating gullible voters through fear and misinformation, but they never had any facts on their side or any logical arguments, ever. The trial was exactly like every public debate on this issue I have ever attended.

George writes:>5) What I FEAR will happen is a big, final fight to pass an actual, no-kidding 28th Amendment banning SSM - or at least explicitly assigning the power of defining marriage to individual States.<

If this ends up at SCOTUS and ends up being upheld, I don't see how this could obtain. At that point, it's a federal matter, a protection granted by the US constitution. So by definition this will be out of the states' hands. If I'm thinking about this correctly?

TH writes:

>I don't know the facts about the judge, but someone said to me yesterday "The judge was gay."

I said, "So?"

He said, "That makes him bias."<

Heh. this was actually the most gratifying part of this for me - the justice himself was gay.

I tend to be Chomskyan in my views on this. Perpetrators of crimes and oppression have no rights; they have only responsibilities (to clean up their messes). The victims are the ones with the rights (to defend themselves by demanding justification for the oppression perpetrated by the invaders).

So I think it's not only laudible that a potential victim of SSM discrimination had the decision-making power in this case, but the way it _should_ be. The _victims_ should be in the driver's seat concerning what happens to them, _not_ the perpetrators.

Walker is a Republican-appointee, strongly opposed by Democrats because they feared he would be...

Ready?

... unfair and hostile to gay rights.

That's so delicious it should come with a dietary warning.

David Boaz has the goods here: http://tiny.cc/m4vzn

A related point...

DavidCT,

I think we can relax - at least somewhat.

From Judge Jones of Kitzmiller fame to this, a lot of heads on the Right have exploded from "their" judges catastrophically betraying them.

This makes me happy, since these are the bozos ruining principled Conservatism and I won't miss them.

But as a Conservo, I simply must point out that Walker, like Judge Jones, puts paid the notion that Republican-appointed judges and justices are some kind of malevolent hivemind of reactionary orthodoxy or jurisprudence.

When this case hits the Supremes, I don't think we need to fear a circle-the-wagons, knee-jerk deference to "tradition."

If that happens, though, I will man the barricades right next to you. I'll bring the beer. :)

@ernobiusRight wingers aren't going to switch enemies just because they lost. I remember hearing, nearly every day, from teachers, in high school how terrible it was that "you aren't allowed to pray in school", and how terrible those activist judges are for making up the law as they go. This was fifteen years ago, and I'm pretty sure that they haven't given up on that fight.

The fact that they lost just gave them more ammo in their rants about being an oppressed majority.

I'm just wondering how long before people start saying things like "because of the prop 8 ruling, if a gay man asks you out, you have to say yes. If you don't he can sue you for discrimination."

As happy as I am that gay marriage is "legal," though maybe just temporarily, this whole thing proves one thing. Democracy simply does not work.

Think about it, one of two things happened, the people voted on it, and it passed, and then the gov stepped in and said "nope, can't have that, even though it was decided 'democratically'" OR the people voted, but the vote turn out did not represent the actual will of the people, so the gov stepped in to "fix" it.

Either way, the democratic process failed to present the will of the people.

Either having a say doesn't work because the gov can step in and over rule your say, or having your say doesn't work because the true will of the people fails to be represented in voting.

Also, in case anyone did not know, it was a conservative judge who made the ruling, and he was nominated by by Reagan. Also, certain high up liberals previously apposed him in the past claiming his was to anti-gay. Quite ironic.

The thing that I love about this decision is that it reveals the complete lack of any evidence on the part of the haters. The absurdity of it is that they could only get two "expert" witnesses, and they were both demonstrated to be buffoons who could not come up with a single fact. All arguments against same sex marriage were revealed as smoke and mirrors. They have had their chance and, with all their money and "morals", this was the best they could do. Personally, I can see no way this can be overturned; they have nothing!

gdw: The only way this ruling would prove that "democracy doesn't work" is if you're one of those folks who defines democracy as nothing more than two wolves and a sheep trying to decide what's for dinner. In the US we have a constitution that essentially serves as the document which says, "It ain't gonna be the sheep." The thing about pure democracy one has to be careful with is that the "tyranny of the majority" cannot be allowed to trample the rights of minorities. The "will of the people" does not seem like such a noble concept when it results in clear and unabashed discrimination.

@gdw: Be sure and read carefully what Martin said in response to you. What you're talking about is exactly the reason we have a written constitution. If civil rights issues like this were left up the people to decide based on a straight vote...well, a lot of the South would probably still be segregated today.

The USA is not, and has never been, a pure majoritarian democracy. It's a constitutional republic in which democratic elections determine who gets to exercise power in the name of the people.

Once elected, though, there are limits to what the power-exercisors can do at any given time. Some things are NOT up for a vote unless very special measures are taken (ie, amending the Constitution).

Think of it like the rules for a baseball game. If one coach decides his team should get five strikes instead of three - well, no. It doesn't matter if every single person in the stands agrees with him. Three strikes and you're out.

You want five strikes? Ok, call one of those giant MLB conferences and change the rules.

People opposed to Prop 8 (incl me) maintain that sure, it was democratically enacted but was still wrong because it broke the rules - rules which are NOT set by State ballot initiatives.

Looking at how laughably bad the defenders' court arguments were, I suspect they knew this all along.

It should now be dawning on them that their stunt is not going to work; they will have to change the rules the right way - through amending States' and the US Constitution.

>Either way, the democratic process failed to present the will of the people.<

On the contrary, this is a _superb_ example of the success and proper functioning of our legal process.

Remember: our system of govt. is NOT a Democracy - it's a _republic_, which is a very different thing.

Specifically, in a republic the rule of _law_ is primary, not _majority_ rule. Laws therefore have to be based on principle rather than simple consensus - this event with the Prop 8 FAIL is actually an excellent example of how our legal system can and does protect minority interests even against a majority opinion.

I refer you to The Federalist Papers as probably the best extant explanation of the reasoning behind our republican form of governance. Madison, Hamilton and Joy go into considerable detail about how it works and how it differs from a Democracy in the way it protects minority interests.

>People opposed to Prop 8 (incl me) maintain that sure, it was democratically enacted but was still wrong because it broke the rules - rules which are NOT set by State ballot initiatives.<

Ok, this is really what I wanted to say was at the heart of all this, but George hit it on the head here for me before my feeble mind was able to put it into words.

This, to me, is the TRUE importance of this ruling - it's the first time to my knowledge that discrimination against homosexuals (concerning the right to marry) was overturned by a federal judge reasoning upon _constitutional principle_.

Prior to this, I don't think gay rights have ever had actual _legal_ recognition as _gay_ rights. Instead, they were merely incidentally tied to some other rights already granted the individual due to some other status (i.e. protections against discrimination based on race, creed, religion or sex alone, etc).

But here for the first time, sexual orientation has been judged a first-class citizen regarding individual civil liberties under the _principles_ of the US constitution - a necessary prerequisite for those protections finally becoming the law of the land (and thus subject to the due deliberation and process of law granted to the civil liberties of the rest of us).

That's what's so vitally important about this to me (and how this bears on our form of govt. as well).

A lot of the time I start thinking our system has gone Tango Uniform and get very depressed about it. But this is a very gratifying reminder to me that it still can and does work from time to time.....

I was profoundly disturbed by how apparently the rhetoric has changed zero, despite the scope of anti-gay shrinking. I don't believe for a second anymore those people will stop at playing keep-a-way with marriage.

To every one who brought up the fact that it is a republic, thank you, that was kind of my round about point. So often I hear people spouting about how this is a democracy and it drives me nuts. And I was one of those people, lol.

However, the part of the constitution he cited leaves the ruling up to a semantic argument on equals protection vs equal treatment.Technically homosexuals had the same rights as everyone. The "right" available to all was the right to marry someone of the opposite sex.I agree that this is a limited regulation put in place in the first place and needed to be fixed.

The problem here is the same as often always is, people trying to force their values on others through the law.

I would recommend a perusal of the decision and a reading of the key parts. It's pretty long...138 pages, but it makes for good reading. The proponents of Prop 8 in this case made every tired argument in the book and they got shot down by the other side like ducks in a row.

My personal favorite from the latter half of the decision, in which the Judge is wrapping up all his conclusions is from Page 89:

Proposition 8 does not affect the First Amendment rights ofthose opposed to marriage for same-sex couples. Prior toProposition 8, no religious group was required to recognizemarriage for same-sex couples.

This was the part of this whole 2-year debacle that really really incenses me. The idea that so many people had and still have the nerve to say that letting a group of people have access to something infringes on their "right" to keep them from having it is so circular and abhorrent. And then when people try to somehow link it to religious freedom by suggesting that since their religion tells them gay marriage is wrong, then it's protected and should be the default position. *meeeeeep*

I've always wondered if Prop8 and even gay marriage bans were held up, could we get around it by challenging it on religious freedom issues? There are definitely churches that have no problems with it and can argue that sanctifying gay marriages IS part of their religion. Could that be used as a backdoor (te he te he) way of getting around it?

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PLEASE NOTE: The Atheist Experience has moved to a new location, and this blog is now closed to comments. To participate in future discussions, please visit http://www.freethoughtblogs.com/axp.The Atheist Experience is a weekly live call-in television show sponsored by the Atheist Community of Austin. This independently-run blog (not sponsored by the ACA) features contributions from current and former hosts and co-hosts of the show.